Saturday, August 22, 2009

Nebraska Court of Appeals allows uncounseled prior DUI conviction for enhancement when sentence was stand-alone probation and subsequent offense for DUI 2nd offense. State v. Wilson, A-08-1337, 17 Neb. App. 846. New charge was DUI 2nd offense, more than 0.15, Neb. Rev. Stat. § 60-6,196 (Reissue 2004), which is a Class I misdemeanor under Neb. Rev. Stat. § 60-6,197.03(5) (Supp. 2007). At the time, her breath alcohol content was .215 grams per 210 liters of her breath. "we hold that a prior conviction resulting in a sentence of probation, and not actual imprisonment, can be used for enhancement in subsequent proceedings without a showing that the defendant had or waived counsel in the prior proceeding. Because Wilson was sentenced to probation and a fine and no term of imprisonment was actually imposed, Wilson was clearly not entitled to counsel for her misdemeanor conviction for DUI in 2003—on constitutional or any other grounds."

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